The Court of Appeal has dismissed an appeal by J.U. against the severity of an eight-year sentence for rape, upholding the Central Criminal Court’s decision to suspend the final year subject to probation conditions.
The court, in a judgment delivered on 21 February 2023, found that the sentencing judge had made no error of principle in setting a nine-year headline sentence, reducing it by one year for mitigation and suspending the final year of the resulting eight-year term. The appeal concerned sentence only; the court did not revisit the conviction.
The offence occurred at a party at a residential address in Dundalk, County Louth, on 8 May 2017. The complainant, then 21, had gone to bed after drinking and feeling unwell. The court’s account of evidence at trial was that J.U. entered the bedroom and raped her while she was asleep or waking. She left the house crying with her sister. A medical examination the next day found two superficial abrasions described as consistent with recent vaginal penetration. Messages exchanged the following day included J.U.’s apology; he told the court he had little memory of the night.
The sentencing judge placed the offending in the “ordinary” category for headline sentences, as set out in the Supreme Court’s DPP v F.E. framework. She considered the complainant’s vulnerability, the invasion of a space where she was entitled to feel safe, the impact described in her victim impact statement, and J.U.’s personal circumstances, remorse, lack of previous convictions and age. The final sentence was eight years, with one year suspended subject to probation conditions.
On appeal, J.U. argued that the case belonged in a lower sentencing category, that the headline sentence was excessive and that the sentencing judge gave insufficient weight to mitigation. The Court of Appeal said he was not obliged to plead guilty and could not be punished for going to trial. But because he did not plead guilty, he lost the significant mitigation that a guilty plea could have provided. The court also said he could not claim partial mitigation because the complainant was not robustly cross-examined when she still had to testify.
The judges accepted the prosecution’s submission that the complainant had been vulnerable and had suffered very significant harm. They said the nine-year starting point was at the severe end of the sentencing judge’s legitimate discretion, but remained within it. The court upheld the sentence and dismissed the appeal.